An overview: individuals with disabilities and the interscholastic athletic program.

The Americans with Disabilities ACT (ADA), Individuals with Disabilities Act (IDEA), and Section 504 of the Rehabilitation Act have all been used by individuals, schools and athletic associations in either defending or opposing rules about individuals with disabilities in high school athletics.

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Over the past 10-15 years, the precedent has been to adjust most cases in terms of their specific details. But individuals, schools, and interscholastic associations can no longer rely on past court cases to achieve a sense of security and sensibility.

Three federal statutes have been designed to protect students with disabilities from discrimination. Section 504 of the Rehabilitation Act of 1973, and the ADA Act of 1994 are civil rights statutes that offer protection from discrimination and unequal accommodations to individuals with disabilities.

IDEA was enacted to help fund the states in meeting the education needs of disabled students.

Section 504 of ADA applies to all agencies that receive federal funding. In essence, it would apply to practically every public school district in the U.S. According to Yell, it is designed to protect disabled children from discrimination. It prohibits the exclusion of such students from services, programs and activities of the public entity and requires that any aid, benefit or service to a qualified individual must be equal to or as effective as that provided to others. This protection includes, and goes beyond the school's provision of an education to such areas as of related services, participation in interscholastic athletics, and architectural accessibility.

According to Yell (1998), the ADA extends its guaranteed protections in Section 504 of the Rehabilitation Act. This embraces employers, state and local governments, or any instrumentality of government, as well as privately owned business or facility open to the public.

In the PGA Tour v. Casey Martin case, the Supreme Court established three tests to determine ADA compliance: (1) whether the requested modification is reasonable; (2) whether it is necessary for the individual, and (3) whether it would fundamentally alter the nature of the competition.

The purpose of IDEA is to (1) assure all disabled children of a free appropriate public education that emphasizes special education and related services designed to meet their unique needs.

Under IDEA, the individualized education program that gives a student the opportunity to participate in extracurricular activities, merely affirms the student's eligibility. It does not guarantee a position on any team.

The federal statutes may refer to Brown v. Board of Education in 1954 for legal intent. This decision abolished the concept of "separate but equal."

From D.P. Beaver (2002): "Based on this ruling, a school cannot argue that the existence of separate programs provided by one or more disabled sports organizations provides a sufficient opportunity, since the opportunity is not integrated in the school system and thus not readily available for participation."

"Therefore, the argument that disabled individuals with disabilities wanting to participate in sports have to look to organizations such as Special Olympics for opportunity is illegal. These individuals have to have the potential for participation within the school setting."

Most coaches, athletes, and parents would not argue about the personal development opportunities afforded by interscholastic athletics.

In fact, the personal development opportunities provide a key argument for the development and maintenance of interscholastic athletics. Athletes are taught discipline, perseverance, fair play, coping strategies, concentration, social interaction, and self-esteem.

Considering all of these positive lessons learned in interscholastic athletics, it is difficult to understand why such opportunities should only be available for the non-disabled. Students with disabilities could very well gain an even greater benefit from each of these areas of personal development.

Interscholastic sports generally create a positive academic ambiance to go along with the personal development. Studies have consistently shown that students' participation in interscholastic sports produces high academic scores, high graduation rates, and fewer discipline problems.

According to Beaver (2002), a prime moral issue evolves around the stereotype placed on youths with disabilities being less capable: "When a group within society is treated in a manner different from other groups, that group is seen as different."

Traditionally, several rules, statutes, or even unwritten rules, have been used to deny disabled individuals from participating in interscholastic sports.

AGE 19 RULE

The Age 19 Rule de-eligibalizes students who turn 19 before a preset date from participating in interscholastic activities. Its purpose is to reduce the competitive advantage of teams with older, bigger and more experienced students, to protect younger students from injury, and to discourage coaches and students from delaying education to enhance athletic performance.

Many special education students will repeat one or more grades during their K-12 academic career. The repetition of grades will have individuals many times over 19-years of age or older during their final one or two years of high school.

In a review of 12 court cases on the Age 19 Rule from 1991-1997, a slight majority of the courts (7-5) ruled in favor of the Age 19 Rule. But this trend is beginning to change. Since 2000, the courts have begun to ask the individual schools and associations to look at each individual request for waiver of the Age 19 Rule.

ACADEMIC ELIGIBILITY REQUIREMENTS

AERs generally are established by both individual schools and athletic associations. They take many forms, but generally entail the achievement of minimum numbers of credits or minimum grade point average. The courts have traditionally ruled in favor of school districts and associations based the premise that AER rules are applied equally to students with and without disabilities, and therefore not discriminatory.

MAXIMUM PARTICIPATION REQUIREMENTS

MPRs are bylaws that confine the students' eligibility to the completion of eight semesters in school or four seasons in a sport. According to Sullivan et al (2000), athletic associations have been successful in all of the limited published court opinions up until 1998.

These rulings primarily deter individuals from delaying the students' education in order to gain a competitive advantage.

STUDENT SAFETY

Student safety policies can take on several forms, such as paired-organ requirements, autism concerns, and wheelchairs.

Paired-organ requirements stipulate that a student must have both of any typically paired organs (ex., eyes, kidneys) in order to participate. Most decisions on paired-organ policies have favored the student. With wheelchairs or other orthopedic devices, the courts indicate that it has to be determined whether waiving the particular student safety regulation would fundamentally alter the sport or place other participants at additional risk.

ADDITIONAL CONCEPTS

"Reasonable accommodation" is a term that school districts must be aware of in addition to the bylaws and statutes mentioned above.

Reasonable accommodation generally depends on the circumstances, including an analysis of the size of the program, its overall budget compared to the potential cost of an accommodation, the potential disruption to a program's central services that might be caused by the requested accommodation, and other factors. It also means an employer is required to take reasonable steps to accommodate to someone's disability unless it would cause undue hardship.

"Otherwise Qualified" is an additional term that should be understood by school districts and athletic directors. Courts have a three-step analysis for "otherwise qualified" requirement under the Rehabilitation Act and the ADA.

First, the disabled individual must met all the essential eligibility requirements in spite of his disability.

Second, the rule has an exception. If the disabled individual cannot meet all the essential eligibility requirements because of his disability, it must be determined if reasonable accommodations can be made that will allow the disabled individual to become otherwise qualified.

Third, there is an "exception to the exception." An accommodation is not reasonable if it fundamentally alters the nature of the program.

These steps are interrelated and tend to collapse as the courts apply the otherwise qualified standard.

GENERAL RECOMMENDATIONS

1. Districts are generally required to provide athletics and nonacademic services to give disabled students an equal opportunity for participation.

2. Courts have set a precedent for all cases involving ADA, Section 504, or IDEA. The cases must be dealt with on an individual basis.

3. The following ideas can be a guide to help individuals understand how Section 504 can impact eligibility for sports and other extracurricular activities:

... regular athletic or performance standards apply to Section 504 students.

... team standards or conduct apply to Section 504 students.

... requirements of "no pass, no play," even with accommodations, apply to Section 504 students.

... for hearing-impaired students, sign interpreters may be required.

... students over the age limit for participation may seek an exemption on a case-by-case basis.

... reasonable accommodations will generally be required with respect to nonessential participation requirements.

... If a requested accommodation would represent a fundamental alteration to a district's extracurricular program, causing undue financial and administrative burdens, it will not be required under Section 504.

4. The majority of courts have held that a pre-established school, state, or interscholastic athletic association standard is applied to everyone evenly. It is not discriminatory.

5. If waiving the particular regulation, statute, or bylaw will fundamentally alter the sport or place, other participants at additional risk Section 504 will not come into play.

6. Student alcohol and/or illicit drug use is not protected by Section 504.

7. The handling of information on someone's disability and their status as such is a very sensitive issue.

Information on disability is considered highly confidential, is maintained in separate, secure files with limited access, and is shared on a need-to-know basis. In this context, need-to-know could be defined as "needing to have knowledge in order to be pre pared to take specific action."

8. Courts have identified several distinct elements that a student-athlete must show to win a disability discrimination action. To establish a section 504 claim, a student-athlete must prove: (1) he has a disability as defined by the Act; (2) he is "otherwise qualified" to participate in interscholastic athletics or that he may be "otherwise qualified" via "reasonable accommodations"; (3) he is being excluded from participating in athletics solely because of his disability; and (4) he receives federal financial assistance.

9. To establish an ADA claim a student-athlete must show: he has a disability, the defendant is subject to the ADA, and that he was denied the opportunity to participate in or benefit from services or accommodations on the basis of his disability and that reasonable accommodations could be made that do not fundamentally alter the nature of the defendant's services or accommodations.

10. "Allegations of discrimination in extracurricular activities are usually based on what the parent sees as an adverse action against the student ... There are situations where the student tried out for the team and didn't make it, was kicked off the team or was disciplined in a way the parent didn't like. It simply comes down to the application of the rules."

11. When there are questions about a student's eligibility, the athletic director's first move should be to consult the state or interscholastic athletic association guidelines.

12. The handling of information on someone's disability and their status as a person with a disability is a very sensitive issue. Information on disability is considered highly confidential, is maintained in separate, secure files with limited access, and is shared on a need-to-know basis.

In this context, "need-to-know" could be defined as "needing to have knowledge in order to be prepared to take specific action."

13. Under all circumstances in the handling of any individual challenges pertaining to disabilities that proper due process is afforded to the student and family. Substantive due process pertains to whether the rule that was violated was fair and reasonable.

14. The athletic director must have clear and consistent communication with the school lawyer.

15. Make sure that the coaches understand that a player cannot be cut from a team based on his disability. The only way this individual can be cut is by failing to meet the standards set for all players on the team during tryouts.

16. All policies must be handled equally among all the participants. Policies cannot be forced individuals with disabilities.

17. Districts are required to provide athletic and non-athletic services in a manner that will provide disabled students with an equal opportunity for participation.

18. If a school's academic policy for athletic participation imposes disciplinary consequences on special education students, and is applicable to all participants, it is unlikely that a district will violate Section 504 by implementing such a program, provided it complies with the terms of the students' IEPs or Section 504 plans.

By Scott Klungseth, Inst. HPE, H.P.E., Northern State U. Aberdeen, SD